September 10, 2013

You be the federal sentencing judge: "Newlywed Admits to Pushing Husband off Cliff"

The title of this post is drawn from the headline of this notable new local "real crime" story that is all the buzz this morning in lots of national media outlets. Based on the reported facts reprinted below, I am very interested in hearing reader instincts about what might be a fitting federal punishment for this killer bride (who is in federal custody because she committed her crime at a national park):

The wife of a 25-year-old Kalispell man, who was found dead in Glacier National Park in July, is now charged with his murder.
Jordan Linn Graham, 22, appeared in federal court in Missoula on Monday on a charge of second degree murder in the death of her husband, Cody Lee Johnson.

Court documents allege the newlywed wife pushed her husband off a cliff in Glacier National Park during an argument just a week after they were married.
Charging documents reveal Jordan Linn Graham told a friend she was having second thoughts about getting married to Cody Lee Johnson. Graham then told her friend she intended to discuss the matter with Johnson that night, Sunday, July 7. She followed up with a text message that read, "But dead serious. If you don't hear from me at all again tonight, something happened."

The next day, Monday, July 8, Johnson was reported missing when he failed to show up for work.
Around 8:30 p.m. on Thursday, July 11, a Glacier National Park ranger was dispatched to the Lake Mcdonald Camp Store for a visitor reporting a dead body. The affidavit states that Graham was identified as the person who told the ranger she found a dead body.

Johnson's body was recovered the next day below a popular viewpoint on the Going-to-the-Sun Road called "The Loop."
Graham was interviewed by FBI special agents on July 16, which was nearly one week after the disappearance of her new husband. It was then that she admitted to law enforcement that she lied about Johnson's death.

She told the FBI agent she and her husband were arguing on July 7 as they walked the Loop Trail. Documents say at one point, she turned to walk away, but Johnson grabbed her arm. Graham said she turned around and removed his hand from her arm. She went on to say that "she could have just walked away, but due to her anger, she pushed Johnson with both hands in the back and as a results, he fell face first off the cliff." During an initial interview with law enforcement, Graham said that Johnson left the house late with friends in a dark-colored car late on the night in question.

Graham faces a federal charge of second degree murder. If convicted, she could face life in prison.

The U.S. Sentencing Guidelines provide a base offense level of 38 for second-degree murder in section 2A1.2, which corresponds to an advisory guideline sentencing range of just under 20 to 25 years (assuming no significant criminal history). But I would expect a guilty plea here which alone, thanks to an acceptance of responsibility downward adjustment, could reduce the advisory range to 14 to 18 years. That said, the defendant's prior lies about the crime could lead to an obstruction of justice enhancement, and it is especially interesting to consider whether federal prosecutors could or should also argue for another offense level upward adjustment here based on abuse of a position of private trust.

Of course, the defendant might be able to secure a guilty plea to only a voluntary or involuntary manslaughter charge, which could and would alone dramatically reduce the applicable guideline sentence range (as evidenced here and here), perhaps even to a guideline level so low that the advisory range might even permit a within-guideline sentence involving an alternative to incarceration. And, of course, with the federal sentencing guidelines only advisory, a federal sentencing judge could surely develop under various 3553(a) factors various arguments to justify a sentence perhaps as high as life and as low as straight probation.

Though I am not teaching my upper-level sentencing course until next semester, I sincerely hope (and somewhat expect) that this case will stay in federal court and stay in the headlines for some time. As the discussion above is meant to highlights, this case serves as an interesting and accessible example of just how much discretionary sentencing play there is in the "joints" of the modern federal sentencing system for both litigants and judges.

Comments

Even with the obstruction charge, 14 to 18 years sounds to me a tad high for this sort of crime of passion, but query how much time that will mean of actual prison time if she follows her ps and qs in prison? These things are misleading to the average person when in practice only a fraction will likely be served.

· During an initial interview with law enforcement, Graham provided a completely fabricated tale of no involvement,
and probably played the part of the 'grieving new bride' [she told another tale two days thence.]

· Nearly one week later, "She went on to say that "she could have just walked away, but due to her anger, she pushed Johnson with both hands in the back and as a results, he fell face first off the cliff."

--> Did she need to employ a dreaded firearm to achieve a deliberate murder?
--> Did she have to run him over with a car? His back was turned!

What did she think would happen? If death was unintentional, why did she not seek help, even hours later;
but it be still a crime of passion?

1. The massive woman pushed a man who was facing away, over a "sheer" cliff-face.
--"the body was found in an area of the park so steep and rugged that a helicopter had to be used in the recovery"--

2. She lied until pressed, claiming never even being with the victim at the time of his fall.

How cheap was the life of Cody Lee Johnson?

Posted by: Adamakis | Sep 10, 2013 1:21:54 PM

Hey Joe: in the federal system, parole was abolished 30 years ago, so following "ps and qs in prison" can at most lead to a 15% reduction for "good time credit." Consequently, if Graham were sentenced to, say, 12 years in federal prison, she would have to serve at least 10+ years behind bars no matter how good her behavior there.

Posted by: Doug B. | Sep 10, 2013 1:34:50 PM

Either the killing was justified or it was not (based on her behavior as described I would lean toward not). If justified then of course no punishment should be imposed, indeed she should be congratulated; but if not then I would execute her. Unfortunately that is not on offer so I would settle for the longest prison term the charges allow.

Posted by: Soronel Haetir | Sep 10, 2013 1:46:13 PM

"And, of course, with the federal sentencing guidelines only advisory, a federal sentencing judge could surely develop under various 3553(a) factors various arguments to justify a sentence perhaps as high as life and as low as straight probation."

Bingo.

What we have now is anything-goes sentencing at its finest. Anything-goes sentencing brings to mind many things, but the rule of anything that could be called "law" is not among them.

No judge -- a politically unaccountable officer -- should have that kind of do-what-you-like power.

Posted by: Bill Otis | Sep 10, 2013 3:17:59 PM

Thanks, Doug. Admit to quickly reading it over and missing the federal angle.

I'm a former AUSA who is now back in the private sector (since Sept 2012). Super interesting case. Gotta love the unique federal jurisdiction triggered by the facts of this case. It makes me miss my old job.

I think that the enhancement for abuse of private trust is a stretch if you look at the type of examples set forth in the commentary. But the argument can certainly be made if you look at cases where the enhancment was NOT applied and the reasoning that went into that conclusion. See United States v. Fontenot, 14 F.3d 1364 (9th Cir. 1994) (holding that two-level adjustment in defendant's base offense level for abusing position of private trust in manner that significantly facilitated commission or concealment of offense was not justified for defendant who was convicted of traveling in interstate commerce with intent to hire person to murder his wife; defendant's position of trust via marital relationship with his wife did not facilitate his travel or formation of his intent or concealment of offense).

Here one can argue that her position of private trust was abused because the husband reasonably expected that he could turn his back on his own newlywed wife without risking getting pushed off of a cliff. Ponder the following: if he was facing her when she pushed him would we be applying this amendment? It's an interesting issue for sure, but what's the reason for not applying it also to best friends, cousins? It begs some interesting line-drawing questions.

That said, I think that the "vulnerable victim" enhancment under 3A1.1 is an interesting discussion to have as well. See USSG 3A1.1(b)(1) ("If the defendant knew or should have known that a victim of the offense was a vulnerable victim, increase by 2 levels.") Application n. 2 states "'vulnerable victim' means a person (A) who is a victim of the offense of conviction . . . and (B) who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct." I would argue that under the "catch all" maybe the husband was "particularly susceptible to the criminal conduct."

Ultimately, her role as a (newlywed) spouse and the special value our society places in that role and type of relationship (whether rightly or wrongly) will factor/seep into the 3553(a) analysis. Therefore, practically speaking, it is somewhat of an academic discussion (pun intended) as my crim law professor Bill Stuntz liked to point out when having these sorts of discussion.

The obstruction of enhancement is almost certainly going to be applied by the probation officer in the PSI. The key here is to try to negotiate an Information to manslaughter. Alternatively, let the govenrnment indict and roll the dice on a motion to suppress and pray you can get the statements suppressed (not likely from a statistical perspective). But that's a decision contingent on the defendant's risk tolerance and whether she values the known benefits of a manslaughter Information.

Enjoyed the post and blog.

Best,
Armando

Posted by: Armando | Sep 10, 2013 5:06:33 PM

Bill, the statutory law of federal sentencing is much more detailed than constitution law of the 4th A or 1st A. Would you assert the Framers gave us a lawless Bill of Rights? Or rather are you saying only prosecutors and not judges should decide what those Amendments and others mean?

You might advocate for the law to have more rigid rules than general standard here, but then your gripe is with Congress, not judges. You often seem so eager to assail the judicial branch for problems that are mostly the creation of the other branches.

Posted by: Doug B. | Sep 10, 2013 5:47:40 PM

Doug --

"You often seem so eager to assail the judicial branch for problems that are mostly the creation of the other branches."

Where, as you correctly (and explicitly) say, the judge here, under mere "advisory" guidelines, can impose a sentence "as high as life and as low as straight probation," we have a judiciary run amok.

This is not, nor it shouldn't be, a left v. right issue, or a hardline v. rehab question. It's whether the public and the defendant should have at least a vague clue as to what the punishment for X behavior is going to be.

As you note, we don't.

In this instance, the legislature (Congress) gave us binding guidelines. It was the judiciary -- that is, judges -- who decided that the binding nature would get tossed out so that even more power could be shifted to -- ready now? -- YET OTHER JUDGES!

I repeat: A sound jurisprudence does not allow unelected officers (and probably not elected ones either) this degree of untrammeled power. Do-what-you-want sentencing just cannot be squared with a healthy version of the rule of law.

Posted by: Bill Otis | Sep 10, 2013 6:21:19 PM

I cannot answer the question until more facts are given about her past conduct prior to the crime.

Otis, you are so full of nonsense...I guess only AUSA's should have the do-what-you-like power. You are such a broken record. Thank God your not still a prosecutor. Your faith in prosecutors and constant bashing of federal judges is shameful. Did a judge chew on your fragile ego and thus your constant whining about judicial discretion? Get a life, dude.

What specific aspects of control over charging decisions would you leave in the hands of the executive branch, not subject to veto, or effective veto, by the judicial branch? Or does the judicial branch, at the end of the day, get 100% control?

Are you of the view that the legislative branch can EVER impose a mandatory minimum? If so, under what specific circumstances?

Posted by: Bill Otis | Sep 10, 2013 9:21:14 PM

To me it sounds more as manslaughter , subject to what and why the second thoughts.

The "Lie and you die" would not work here.

An appropriate prison term with 40 hours per week anger management reprogramming would be o.k.

☺ With some effort „ we may persuade her to agree that 2+2=5

Posted by: Just Plain Jim | Sep 11, 2013 7:14:46 AM

Speaking of killing , had I killed a judge for “bill-napping” a narrative bill of exceptions by taking it to another county and keeping it there (thereby trashing an appeal), why ought I not be charged with manslaughter.

Posted by: Just Plain Jim | Sep 11, 2013 7:19:28 AM

One lesson.

One has killed the husband. Shut the eff about it. If one can't control one's mouth, say, I want a lawyer. He will then say, shut the eff up.

On the First 48 Hours, almost all cases are solbved by confession. Usually, the confession follows a lame interrogation method, such as, why don't youstart being a man, and start telling the truth.

Bill, you say: "Where, as you correctly (and explicitly) say, the judge here ... can impose a sentence as high as life and as low as straight probation, we have a judiciary run amok.... [T]he public and the defendant should have at least a vague clue as to what the punishment for X behavior is going to be."

The reason this is so much "play in the joints" here, Bill, is not because of a "judiciary run amok," but rather because we do not yet know all the facts about Graham's behavior. If it turns out the federal prosecutor can prove in court that she is a cold-blooded murderer, everyone surely knows a judge is likely to impose a prison sentence of a decade or more. But if she turns out only to be guilty of manslaughter, she seems more likely to get a sentence of years, not decades.

Indeed, as my post highlights, the judiciary is subject to and has itself created LOTS of law that allows us to make this assessment once we have more facts developed about her behavior: even with the guidelines advisory, a federal sentencing judge has to follow the 3553(a) rules/standards and it still pays a lot of attention to those federal sentencing guidelines. Also, a sentencing judge will have to explain on the record the reasons for her sentencing decision (after an open in-court process hearing from both sides), and this decision and its reasons will be subject to public scrutiny and appellate review.

In fact, it is the federal prosecutor here is the one who really has the truly untrammeled power to "control" the sentencing outcome this case (and really all others) because of statutory maximums and his "lawless" charging/bargaining power. The federal prosecutor, perhaps because he is really busy or really lazy or thinks women should never be (or should always be) punished harshly for killing a guy, can decide whether this defendant faces the max of life by seeking a murder conviction or could place a 15-year cap by agreeing to a voluntary manslaughter plea or an 8-year cap by agreeing to an involuntary manslaughter plea. Also, the prosecutor could decide to pick --- randomly or for any good or bad reason -- that a particular sentencing is "just right" and force the defendant here to consider a take-it-or-leave it 11(c)(1)(c) plea to 1 year or 3 years or 5 years or 15 years or 25 years or whatever makes him happy based on what he had for breakfast.

You assert that a "sound jurisprudence does not allow unelected officers (and probably not elected ones either) this degree of untrammeled power." I AGREE, which is why I worry much more about our prosecutorial discretion jurisprudence than our judicial discretion jurisprudence. As explained above, there is lots of law and required procedure --- albeit stated in flexible standards --- which cabins and makes transparent and checks how federal judges use their sentencing power. In sharp contrast, there is no law or required procedure for how federal prosecutors use their sentencing power.

I sincerely believe we do not have (nor ever have had) federal prosecutors "run amok" and using coin flips rather than good reasons when deciding on charges/sentences. BUT there is no way to know and mandatory minimums (and maximums as in this case) make the consequences of hidden prosecutorial discretion that much more significant (for both the defendant and society) than does transparent and reviewable judicial discretion.

Posted by: Doug B. | Sep 11, 2013 10:14:25 AM

And Bill, I do not think I want to give judges a "charging" veto --- I just favor a bill like the Leahy/Paul bill that gives judges a "sentencing" veto which would be subject to a number of legal standards and subject to judicial review. (By the way: Do you consider the existing statutory safety valve a "charging veto"? Why or why not and are you eager to see it repealed?)

And I would be fine -- indeed, would favor --- if a Leahy/Paul statutory kind of "sentencing" veto on prosecutorial charging/bargaining would also allow a judge to go above a stat max as well as below a stat min. For example, I think it would have be preferable for Judge Denny Chin to have had statutory discretion --- subject to applicable legal standards, on-the-record statements of reasons and appellate review --- to give Bernie Madoff a life sentence rather than stack a bunch of short terms for each count.

Similarly, if the federal prosecutor was unwilling in this killer bride case to try to prove intent and took a plea to involuntary manslaughter, but then the victim's family were to come in at sentence with lots and lots of strong proof of premeditation, I would want to give the sentencing judge here --- subject to applicable legal standards, on-the-record statements of reasons and appellate review --- authority to go above the 8-year federal stat max for involuntary manslaughter.

Get it, Bill, this is ALL about SENTENCING OUTCOMES, not charging decisions.

Posted by: Doug B. | Sep 11, 2013 10:28:10 AM

She will probably use the argument with her hubby as grounds for mental abuse and the alleged hand on her arm as evidence of physical abuse, and will get off scot free.

Posted by: Rodeodoc | Sep 11, 2013 12:01:19 PM

I don't attach a lot of significance to prosecutors being "politically accountable." U.S. Attorney's are political appointees who are politically accountable only to the president, not the citizens of the state they are in. Consider the fact that when the public criticizes the action of a prosecutor, the response is typically along the lines of "We make decisions based on the facts and the law, not on what is politically popular."

Posted by: Bryan Gates | Sep 12, 2013 3:01:40 PM

Do people here know that all lawyers in the prosecution are at will employees, not in the civil service? Some have invested many years in their job. The political appointee or elected official says, Prosecute, or says, do not prosecute, what choice do they have, unless they want to resign?

A lot will depend on whether her lawyers (and the USA) believe she can make a strong argument for a jury to return a manslaughter verdict (or acquittal). There was an argument, each person put hands on the other, she shoved him. Given the limited information available at this point, it is perfectly possible to imagine a scenario where the fatal potential of that shove wouldn't have been obvious. There are trails that are obviously surrounded by sheer cliffs, then there are trails where the danger of a misstep is much less clear. It would be interesting if the case went to trial to see whether one or both of the parties would seek to have the jury visit the scene. This seems to me like the kind of case where such a visit could be crucial to get a sense of how a reasonable person would have perceived the situation.

To my ears, the statement quoted above, that "she could have just walked away, but due to her anger, she pushed Johnson with both hands in the back and as a result[], he fell face first off the cliff" sounds like a law-enforcement paraphrase -- unless this 22-year-old woman habitually talks in the language of indictments. Thus, without a full transcript of the interrogation, we don't really know the flavor of her version of the events, or how locked in she is to a supposed "confession." Indeed, even the version above simply admits that (1) she pushed him because she was angry, and (2) he fell off the cliff because of the push. It doesn't admit that she knew or should have known beforehand that the push would have that result. She may indeed have committed a shocking, intentional murder, but I'd say it's too early to draw conclusions from these reports.

(Note that her after-the-fact obfuscation certainly doesn't help her. But it's also not slam-dunk evidence of her mental state/intent at the time of the shove. It's certainly not unusual in general for someone to panic and cover up even an accidental killing. Although it probably is unusual when the victim is your newlywed spouse...)

At any rate, whether or not she's guilty, she certainly would be in a much better position legally if she had just shut up and asked to speak to a lawyer. Not to mention simply reported the fall and said that he lost his footing. But (thank God) there just aren't very many folks walking around with the cold-blooded ability to cover up a crime convincingly.

Posted by: anon | Sep 16, 2013 10:44:12 AM

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